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ELRCDismissedNot stated in the judgment (Claimant's Notice of Motion dated 6th August 2021 in an employment suit filed 7th December 2020)· [2021] KEELRC 79 (KLR)

Ibrahim El Khoury v Coastal Bottlers Limited [2021] KEELRC 79 (KLR)

Employment and Labour Relations Court
20 December 2021
932 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A party who accepts and responds to an amended court pleading cannot later ask to strike it out for being filed late.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Mombasa (Agnes Kitiku Nzei, Judge) determines a Notice of Motion dated 6th August 2021 in which the Claimant sought the striking out of the Respondent's Amended Response to Statement of Claim and Counter-Claim dated 18th May 2021, filed on 20th May 2021, together with costs. The Claimant, invoking Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 14(6) of the ELRC (Procedure) Rules 2016, argued that the amended pleading was filed after closure of pleadings and without the court's leave. The Respondent countered that its counsel had disclosed the amended filing at the mention of 24th May 2021 and sought the court's directions. Examining its own record, the court found that the Respondent's counsel had indeed brought the amended pleading to the court's attention on 24th May 2021, and that the Claimant's counsel, far from objecting, twice sought and obtained fourteen-day adjournments to respond to it. The court also noted that no affidavit of service had been filed on the Claimant's Reply, making it impossible to determine when pleadings closed, and that the court's orders of 24th May 2021 and 7th July 2021 had never been reviewed or set aside. The application was dismissed with no order as to costs; the Claimant was given twenty-one days to file a Reply to the amended pleading if he wished, and the suit was fixed for mention on 10th February 2022 for pre-trial directions.

Key legal issues

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01

Whether the Respondent's Amended Response and Counter-Claim was properly on record notwithstanding Rule 14(4) on closure of pleadings

Holding

The application to strike out the amended pleading was dismissed; the pleading was treated as properly before the court because the Claimant's counsel acknowledged it, sought time to respond to it, and the court granted directions that remained in force

Reasoning

The court examined its record for 24th May 2021 and found that the Respondent's counsel disclosed the filing of the Amended Response and Counter-Claim and that the Claimant's counsel, instead of objecting, requested fourteen days to respond. The Claimant then twice sought and obtained time to respond. The court held that its orders of 24th May 2021 and 7th July 2021 stood and had not been reviewed or set aside, so the Claimant could not attack the pleading collaterally. The absence of an affidavit of service on the Reply meant the date of closure of pleadings could not be established from the record.

p. 2

Legal principles established

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  • Where a party participates in proceedings on an amended pleading and obtains the court's directions/indulgence without objection, it cannot later seek to strike out that pleading on the ground that it was filed out of time, without first seeking review or setting aside of the orders made

Court orders

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  1. 1.The Claimant's Notice of Motion dated 6th August 2021 is dismissed with no order as to costs
  2. 2.The Claimant is directed to file and serve a Reply to the Respondent's Amended Response to the Statement of Claim and Counter-Claim within twenty-one days of the Ruling, if he wishes to do so
  3. 3.The suit to be mentioned in Court on 10th February 2022 for pre-trial directions
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Rule 14(6) of the Employment and Labour Relations Court (Procedure) Rules 2016 (as invoked in the application)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ibrahim El Khoury v Coastal Bottlers Limited [2021] KEELRC 79 (KLR)", Case Analysis (2021). Not stated in the judgment (Claimant's Notice of Motion dated 6th August 2021 in an employment suit filed 7th December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/79/eng@2021-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.